*1 State, Board of petitioner and disclosing doc- in not certain
Pardons erred apparently before
uments which VII,
Board, section required article However, Utah. Constitution the Board demonstrates that
decision of information rely not on the undisclosed
did declining any significant extent sentence. petitioner’s
commute death Wainwright, 477 U.S. 399, 106
If Ford v. (1986), appli L.Ed.2d 335 has
S.Ct. in this case and if error were com
cation Ford, the error as
mitted under we view
harmless. petition is
The denied. C.J.,
HOWE, re- Associate concurs being only, convinced that
sult
Board of Pardons erred. PROPERTIES,
MACHAN HAMPSHIRE
INC., corporation, Plaintiff a Utah Appellant, REAL &
WESTERN ESTATE DEVEL COMPANY, corpora
OPMENT a Utah
tion; Mortgage and Loan Cor
poration, corporation; a Utah K-E En general
terprises, partnership; a Utah Investments, gen a California partnership;
eral Birtcher American association;
Properties, a California Financial, Inc., CapitalCorp a Cali corporation,
fornia Defendants and Re
spondents.
No. 880229-CA. Appeals
Court of of Utah.
Aug. 10, 1989.
231 law, give we no deference to trial law, court’s view of but review it for Asphalt correctness. Ron Case Roofing & Paving, 1382, Blomquist, Inc. v. P.2d 773 (Utah 1989); Borthick, 1385 Madsen v. 245, (Utah 1988). P.2d
FACTS Mortgage Western Enterprises and K-E Utah, Roy, owned 16.6 of land acres in on developed IOmega Light which Emery, City, Michael N. Salt Lake 1985, Industrial In January Park. Robert plaintiff appellant. and Polcha, agent a real licensed estate work- Bushnell, Machan, Dan Wahlquist appellant airplane S. David M. and took Nelson, City, trip Merrill F. Valley rep- Salt Lake for de- around the Salt Lake with respondents. Investments,, fendants and resentatives from Birtcher pointing properties pur- out available for BILLINGS, JACKSON, Before and chase, including IOmega Park. That ORME, JJ. month, being by same after a notified com- mercial Mortgage loan officer at Western JACKSON, Judge: IOmega sale, Park was for Daum Cor- Hampshire Properties, poration, Inc. brokerage a California real estate (“Machan”), firm, brokerage, Slavin, real ap- a estate contacted Richard executive peals summary judgment president Financial, from a dismiss- of CapitalCorp vice ing its against contract claim defendants Inc. (“CapCorp”), and solicited a written Estate Development purchase Real & Com- park, offer industrial which (“Western pany Development”), Western was forwarded to the property owners on (“Western Mortgage Corporation 5,1985, Loan January 30. On the own- Mortgage”), K-E Enterprises1 for a ers countered a offer with modified accepted real estate sales commission. The by CapCorp days lower was three later. court ruled Paragraph purchase agreement that Machan’s claim was barred 9 of by the statute of frauds provided pay codified Utah for the owners 25-5-4(5) (1989).2 Code price Ann. We affirm. of commission of the sales § Corporation. Closing Daum set for In reviewing summary judgment, we mid-April postponed and later until mid- consider the light evidence most fa- July. immediately began Slavin discus- losing party vorable to the affirm only with officer sions the chief executive appears genuine where it there is no dis- president acquisitions the executive vice fact, pute as to material issue Investments, Cap- where, according even to the facts as con- Corp longstanding had a relation- business by losing tended party, moving ship, joint possible about a venture party judgment is entitled to aas matter of IOmega Park. Saurini, Supply law. D L & (1989) (quoting Themy Seagull January February, Sometime in Pol- Enters., Inc., (Utah phoned Kelly Goddard, president 528-29 cha 1979)). deciding whether the trial court Development,3 inquired about properly granted judgment properties being by compa- as matter of marketed time, appeal directly president This does not address the trial 3.At Goddard was also a vice disposing appellant’s court’s order claims Mortgage general partner of Western and a against the other defendants. Enterprises. K-E provision, 2. Recent amendments to this enacted April Utah Laws ch. effective § 24, 1989, appear supplement. in the 1989 conversation, clients, agree you and these phone God-
ny. During the Prop- IOmega Hampshire Park was for dard mentioned that commission to erties, He told Polcha it was Western F. com- sale. also Inc./Robert Polcha. Said log keep a Development’s practice (4%) percent four mission shall be from each bro- registered clients letters Park. Industrial ker, Polcha told filing broker.4 them FED CAL SYNDICATIONS *3 telephone he would Goddard on BIRTCHER PROPER- AMERICAN manner, in and register clients his TIES to let him do so.5 agreed Goddard EQUITABLE LIFE REAL ESTATE call, phone Goddard sent Following the DIVISION 21, 1985, February a dated Polcha letter Very truly yours, stating: /s/ IOmega Park Re: By: Polcha Robert F. Roy, Utah day In a letter the next to Andrew dated Dear Bob: Trachman, Birtcher, at Pol- president a vice Enclosed, you find information please presented IOmega prop- a cha Park as captioned project. requested the above on back-up purchase erty available for a offer phone, you I to on the we As indicated packet enclosed about and a information offer, another and should accepted have property. He sent Trachman additional obtaining buyer, you a success have property information two months about it a back- sure understand would be they later. up-offer. During March, Polcha sent three more questions you may any If have are there Goddard, wording to identical letters with information, please on the contact me. February letter, “register- in his to that Very truly yours, ing” April three clients. additional On /s/ 1985, Polcha sent another letter to God- Kelly Goddard dard, similar to that of but
President referring “proposed to the sub- a lease” of naming ject property and Birtcher Ameri- following Polcha then sent Goddard the Properties, Life letter, Equitable can Inc. and February 26, 1985: dated Estate Polcha Real as Machan’s clients. RE: CLIENT FOR REGISTRATION OF registration to sent another client letter IOMEGA PROPERTY KNOWN AS April and another in mid- Goddard late PARK/ROY, UTAH July, referring proposed to a sale of both Dear Mr. Goddard: IOmega Park. Hampshire Properties, Inc./Rob- Cap- following represents ert F. Conversations between Birtcher Polcha proposed Corp concerning possible joint clients in connection with the officials in, purchase subject properties. The venture or direct under, register purchaser purpose CapCorp’s rights of this letter is to you February purchase clients set forth our with July trans- understanding that the event a held June. Sometime God- yourself phoned that the action is consummated between dard Polcha indicated system registered Although appears purchaser of that this was in- had first the ultimate any parcel one as his or her client. competing prevent tended broker claims client, to a we fail to see commission for sale allege point any evi- 5. Machan did not log how a under the name of each indexed oral with God- dence goal broker achieve this without another could provision dard receipt latter’s mere included by property par- registration index of letters letter, logging registration a client system, cel. this second it would take a Absent response, with no affirmative would constitute every concerning complete ev- letter review acceptance Western’s contractual whatever every ery each time it client in the file broker contained, including any client terms that letter which, necessary any, broker to discover if therein. or clients identified to CapCorp sale Park fallen Dear Bob: through and that the was back letter, response your only we market, suggesting he contact his agreed commission on still had clients interest park.[6] All other terms of above property. conveyed in the Polcha the infor- acceptable. are your letter Trachman, telephone mation in a call to Very truly yours, it, get who said he would back to him about /s/ but did not. Kelly Goddard August 7, 1985, On Polcha fol- sent the President
lowing letter to Goddard: September 6, On Goddard re- RE: REGISTRATION OF FOR CLIENT sponded prior registration to Machan’s PROPERTIES KNOWN AS IOMEGA following letters letter: LIGHT INDUSTRIAL PARK *4 Dear Mr. Goddard: IOmega Re: Roy Park Utah Hampshire Properties, Machan Ltd./Rob- Dear Bob: represents following ert F. Polcha I your have been receiving letters of client in proposed connection registration Though of clients. most are purchase of the proper- above mentioned acceptable the following were contacted ties: prior your of receipt letters.
THE OF ESTATE JAMES CAMP- Corporation 1. DeAuza BELL August 2. Financial purpose The of letter register is to Birtcher Properties/Cap Corp you this client with and to set our forth recognize Therefore we cannot understanding that the event a is sale you any questions above. Should yourself consummated between and this please contact me. client, you pay agree commission Very truly yours, Hampshire Properties, Machan Ltd./Rob- Kelly Goddard Polcha, ert F. on gross based 5% President selling price, paid closing. at confirms, preceding full, The our September IOmega On the owners of understanding you. presented by as to us Birtcher Park and Investments entered into If, any reason, for you agree, do not we agreement purchase an for the latter’s of delay presenting the subject proper- will $7,425,000. for days Twelve (5) for ty days five from so date hereon later, signed Birtcher a “contract for ser- Thereafter, you may respond. the above Inc., CapitalCorp, promis- First vices” with apply. mentioned terms will $500,000 pay as a “finder’s fee” purchase for Very truly Birtcher’s of Park.7 yours, Western refused to Machan a com- PROPERTIES, MACHAN HAMPSHIRE Birtcher, mission on the sale to and Ma- LTD. chan commenced this lawsuit. Polcha, F. Director Robert Acquisitions and Investments action, cause of which was responded the Campbell Goddard Estate against Development, Western August 1985: letter Mortgage, and K-E Enterprises for breach Registration contract,
Re: of Client of alleged Machan it and Development an IOmega Park that “in the event a transaction between James Campbell IOmega park, Machan has not apparently re- chase of never sent a written 6. Polcha accept directly alleged relaying would sponse as to whether Machan it was involved property was sold to the commission if the 4% Estate offers in either that transaction in Birtcher’s Campbell. of James September August or the or of 1986 contract Capitalcorp, Birtcher and First services between Inc., au- is no record evidence 7. There CapCorp allegedly is affiliate. which agent pur- as its Machan to act in its thorized [Develop- sell defendant Western brokers or real estate Birtcher and Inc., compensation. Realty, 758 P.2d principals consummated C.J. or its was ment] 25-5-4(5), at 927. Under section a broker IOmega park, regarding [Machan] express allege prove must written paid commission.” be a 4% to recover a commission. Re- contract C.J. reprinted of the letters The first four 928; alty, at also Case v. above, alleged set forth the which (1920) P. Ralph, 56 Utah agreement, complaint. attached to the (to commission, appear it must recover Respondents presented letter to the fifth “express has an broker contract support their motion for the court in authority in which the terms and ment considering summary judgment. After employment, any, of his conditions judg- parties’ summary cross-motions commission, of his etc. are stat- amount action, ment on Machan’s first cause writing).8 ed” that such is in contract contract claim trial ruled that court writings, all of One more by barred the statute frauds signed by party are to be 25-5-4(5). appeal, In its section charged, may together considered requirement of that the statute’s reasserts purposes memorandum for of the statute par- “some note or memorandum” if there nexus frauds is a between them. is corre- ties’ satisfied Jensen, Gregerson See above, spondence, quoted Goddard between (Utah 1980). requirement The nexus is sat September 6 Goddard’s Polcha before by express either in the isfied reference letter. one, signed writing unsigned to the *5 or time, provided: At the the statute implied gleaned reference from the con agreements unless written Certain void writings the tents of the and circumstances and subscribed. surrounding Regard the transaction. Id. following every agree- In the cases up less a memorandum made of whether is agree- ment void unless such shall be writings, satisfy or more in one order to ment, or some note memorandum the all statute must contain the essential thereof, writing in the is subscribed provisions terms and of the contract to charged party to be therewith: parties agreed. which the Birdzell v. 412, Co., 121 242 Refining Utah Oil Utah (5) authorizing 578, (1952); Harrison, Ney or em- 580 Every P.2d v. 217, 1114, (1956) agent or to 5 Utah 2d 299 P.2d 1118 ploying an broker (memorandum compensation. identify parties, sub or sell real estate for must matter, ject out the “set conditions protect property This is intended to statute adequate certainty”).9 the transaction with owners from fraudulent and fictitious Furthermore, “the must memorandum v. Taylor, claims for commissions. Fowler was, what the contract and not mere show 1976); 205, (Utah Realty, 554 P.2d 208 C.J. ly fact note the that some contract was 923, (Utah 927 Willey, Inc. v. 758 P.2d Goodrich, 662, made.” Collett 119 Utah Ct.App.1988). applies broadly agree to It 730, (1951). 231 P.2d 732 compensation requiring ments for broker estate, agree finder’s including light real In purpose of the of the stat ments, just employing to ute the not contracts nature of the that Although application may Compare statute lead 9. the frauds statute of in Utah Code estate 70A-2-201(l) (1980), to where real broker’s applicable harsh results a con- § Ann. uncompensated, go labors a broker must be goods price the sale $500 tracts for the presumed of em- to know an oral contract or more. Official Comment 1 the counter- ployment negotiat- in for rendition of services part provision in Uniform Code Commercial ing a for a is sale of real estate commission 2-201(1) writing required by § states that the Kohlhase, Ariz.App. Gray invalid. 18 502 provision this need not contain material all the (1972). who 172 A broker fails to Instead, of the contract. is re- terms all that secure assumes the written authorization risk quired writing signed, is that the evidence relying promises no on oral and has cause to goods, specify for the contract sale of complain go if efforts unrewarded. Pacific quantity. R.R., Corp. Pac. Southwest Dev. v. Western 47 (1956). Cal.2d 831
235
any expres-
Birtcher
from Polcha nor
par
letter
contends existed between
ties,
correspondence
amounting
an
sion
admission that
we conclude that
is
purported
Polcha
insufficient
set forth in Polcha’s
between Goddard
contract
ever,
fact,
statute
frauds in section
satisfy
2 A.
letter was
made. See
conclusion,
25-5-4(5).
reaching
In
we Corbin,
516 at 547
Corbin
Contracts §
parties presumed
presume, as
(1950);
(writings
must so
see also id. §
court,
trial
that there is a sufficient nexus
clearly
fact
evidence the
that a contract
them
the letters to consider
to
between
are,
made,
its
“that
was
and what
terms
gether
because
as one memorandum
possibility
is
serious
that the as-
there
no
payment by
Develop
all relate to
Western
false”).
is
sertion
the contract
sale of
upon
a commission
ment of
Notwithstanding
prior
of a
the mention
by its
IOmega
Greger
Park
owners. See
“understanding”
February
Polcha’s
son,
373;
Corbin,
2 A.
617 P.2d at
see also
Goddard, according
deposi-
letter to
to their
516 at 753-54
Corbin on Contracts §
not dis-
testimony
tion
the two men had
such,
(1950).
when
Even
considered
specific
other
client
cussed Birtcher or
however,
inadequate
the letters are an
regis-
Polcha
of Machan’s when
sent
under the statute.
memorandum
naming
client.
tration letter
Birtcher as his
Birdzell,
plaintiff
P.2d at
Like the
fact,
light
February 26
of this
that the
four
Machan contends
clearly
registration
is
offer to act
letter
an
a memorandum of
letters are
IOmega
as Western’s
the sale of
broker
parties,
ment,
by the
previously reached
(and
Park to
other named
commission
clients)
period.
for an unlimited time
Un-
Park was sold to
registration
like some
later
let-
of Polcha’s
However,
infor-
Birtcher.
ters,
indicating
response
it does not invite a
Campbell
August
letter and
mational
Development’s acceptance or re-
letter,
Goddard,
signed by
both
lack
Estate
jection of those terms.10 That offer
any acknowledgment
recognition
accepted
signed August 9
Goddard’s
entered
parties
theretofore
into
letter,
response
only a
to Polcha’s
which is
relating specifically
contract
commission
written,
separate
August
offer of
7 to bro-
*6
Birtcher,
by
correspon-
defect
the
shared
ker the
Park to another ostensible
Birdzell,
580.
dence in
242 P.2d at
See
separate offer contained no
client. This
Hansen,
59 Cal.2d
also Franklin
Birtcher,
that
reference
but did assert
to
(1963)(writ-
386, Cal.Rptr.
30
530
ac-
terms
deemed
presented
the
be
to
satisfy
offered
statute
frauds
cepted
by
if
to
Devel-
objected
specific
must contain the
elements of a
days.11 Polcha’s Febru-
opment within five
agreement).
consummated
Such
ac-
expressly
ary
regarding
offer
Birtcher knowledgment
“authenticity
would lend
to
Septem-
rejected by
his letter of
Goddard
alleged
agree-
the
oral
the existence of
ber 9.
Birdzell,
ment,”
addition to commission rate and the registration process,
details of the client
including provision requiring either a ex-
press or, acceptance of claimed clients likely, provision
more that clients would accepted if expressly reject-
be deemed not period. Against
ed within a stated time
background agreement, of such an greater
assorted letters would have had
meaning legal significance, and clear in- being generated, they were,
stead of legal vacuum, leaving Polcha without an contract as to
enforceable Birtcher. may result,
While this seem a harsh require
does our apology. very The
adoption of a statute of frauds reflects the
Legislature’s judgment that, considered
with certain kinds very important ar-
rangements, preferable it is to invalidate a legitimate agreements
few otherwise be-
cause were not written than to burden system citizenry and the with claims
premised bogus, agreements. unwritten MAXFIELD,
Reed Plaintiff Appellant,
Owen A. RUSHTON and Carol
Rushton, wife, his Defendants Respondents.
Owen A. RUSHTON and Carol
Rushton, wife, Third-Party his Respondents,
Plaintiffs and Utah, By Through
STATE of UTAH
STATE DEPARTMENT OF SOCIAL
SERVICES, Third-Party Defendants Co-Respondents. Pace, City, plain- Lorin N. Salt Lake
No. 880332-CA. appellant. tiff and Appeals Court of of Utah. Henry Nygaard, City, S. Salt Lake
Aug. 23, 1989. respondents. defendants and Wilkinson, Stephen
David L. G. Schwen- diman, Tanner, Bernard M. Leonard E.